Detectives were on patrol in an unmarked vehicle in Jamaica when they observed the Defendant and another man walking down the street. The detectives observed the defendant make “constant adjustments to his waistband” just before stopping him. Pp. 2. The police stopped, identified themselves and the defendant took off running. While fleeing, the defendant threw a gun onto the street. The Appellate Division noted that the police articulation of what occurred did “not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” Pp. 2 (citations omitted). The defendant was charged, indicted and later convicted of criminal possession of a weapon in the second and third degree. As is often the case, an omnibus motion was filed and the suppression of the firearm was denied by the Supreme Court.
Law: “In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Holmes, 81 NY2d 1056, 1058). Pp. 2 “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.” Pp. 2 (citing People v. Martinez, 80 NY2d 444, 448 (internal quotation marks and brackets omitted)). “A suspect’s [f]light alone…even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” People v. Holmes, 81 NY2d at 1058 (citations omitted); see People v. Sierra, 83 NY2d 928, 929; People v. Carmichael, 92 AD3d 687, 688). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v. Holmes, 81 NY2d at 1058; see People v. Sierra, 83 NY2d at 929-930; see also People v. Martinez, 80 NY2d at 447).
Here, as stated above, there were not any specific circumstances indicative of criminal activity that would allow the police to pursue the defendant. New York follows the seminal case of DeBour which set out four specific levels of police inquiry. Here, “[a]t most, the police had only a common-law right to inquire under the second level of DeBour. The defendant had a right to refuse to respond to the police inquiry (see People v. Stevenson, 7 AD3d at 821), and his flight when the officers approached him did not, under the circumstances of this case, create a reasonable suspicion of criminal activity.(see People v. May, 81 NY2d 725, 728; cf. People v. Martinez, 80 NY2d at 448).” Pp. 3 (internal citations preserved).
In sum, the Appellate Division holds that, because the officers lacked reasonable suspicion to pursue the defendant, the chase was unlawful and the disposal was a product (fruit of the poisonous tree) of the illegality. The Appellate Division dismisses the indictment.
The case is People v. Clermont, available here (NY Law Journal)
On October 23, 2015, the New York Law Journal (Joel Stashenko) published the article “Woman’s Conviction for Conduct Affecting Fetus Is Dismissed” Arguably, the Suffolk County District Attorney’s Office should not have brought the case and this woman should not have been convicted of manslaughter for the death of her 6-day-old baby from in-utero injuries sustained in a car accident that she caused by being under the influence.
The conviction of Jennifer Jorgensen for a May 2008 accident in Suffolk County where authorities say her vehicle crossed the center line of a busy road and smashed head-on into an oncoming vehicle, killing its occupants. Jorgensen, who police said was incapacitated by alcohol and/or prescription medications, was 34 weeks pregnant at the time. Jorgenson, not wearing a seatbelt at the time, injured her unborn baby when she struck the steering column in the crash and was delivered by cesarian section.
“Thirteen months [after her child’s death], defendant [(Jorgensen)] was indicted on three counts of manslaughter in the second degree (Penal Law §125.15 ), one count of aggravated vehicular homicide (Penal Law §125.14), and one count of operating a motor vehicle while under the combined influence of alcohol or drugs (Vehicle & Traffic Law §1192 [4-a]). After the first jury failed to reach a unanimous verdict, the parties proceeded to a second trial on all counts.” People v. Jorgensen, No. 179, NYLJ 1202740469239, at *2 (Ct. of App., Decided October 22, 2015)
The issue the Court of Appeals reached “is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in utero where the child was born alive but died as a result of that injury days later.” Jorgensen, at *3.
The Court made clear that “[t]he imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor.” Jorgensen, at *7 The Court of Appeals held “that it is evident from the statutory scheme that the legislature, in enacting Penal Law §125.05 (1) and §125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” Jorgensen, at *3.
The Court of Appeals reversed the Second Department and dismissed the remaining indictment.
Dissenting, Justice Fahey indicated that “[w]here, as here, the baby-victim is born alive but subsequently dies, the Penal Law allows for the conviction of a defendant-mother of manslaughter in the second degree where the acts causing the baby’s death occurred before that infant was born….” That seemed to be the difference here. If Jorgensen did not consent to having the C-Section, this probably would have never become an issue. Nonetheless, as the prosecutor argued it, J. Fahey addressed it.